Opinion
No. 342889
04-16-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRUCE EDWARD SMITH, JR., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-006277-01-FC Before: JANSEN, P.J., and METER and GLEICHER, JJ. PER CURIAM.
Following a bench trial, the circuit court convicted defendant of first-degree murder, MCL 750.316, second-degree arson, MCL 750.73(1), felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant contends that the prosecutor presented insufficient evidence to establish the premeditation and deliberation necessary to support his murder conviction and to establish his identity as the shooter. He also raises several grounds of error in an in pro per brief. We affirm.
I. BACKGROUND
Defendant's convictions arise from the shooting of Anthony Michael and subsequent acts of arson designed to cover up the crime. That evening, defendant and his housemate, Marcia Powell, drank alcohol and smoked marijuana with Michael and an unidentified woman. At some point, Powell retired to her first-floor bedroom and the unidentified woman went upstairs to defendant's bedroom. Shortly thereafter, Powell heard Michael talking loudly, followed by four gunshots coming from the dining room. After hearing "a bunch of runnin' around, stumbling," Powell heard three more gunshots. When Powell came out, she observed Michael lying on the dining room floor with multiple gunshot wounds to his head and neck. Michael was still breathing. Defendant was also in the dining room, gathering drugs that he and Anthony "were selling" and placing them into a bag. Powell asserted that no one else could have entered the home before the shooting as the front door was blocked with a two-by-four and she would have heard it being removed to allow someone entry.
Powell and the unidentified woman left together through the house's front door. As the women left, Powell saw defendant reenter the home with a bottle of charcoal lighter fluid. The fire investigator testified that the fire originated near Michael's body in the dining room and was started with charcoal lighter fluid. Michael's cause of death, however, was four gunshot wounds. Approximately a week after Michael's murder, his girlfriend, Keisha Mays, received a call from a man who did not identify himself, but whose voice she recognized as defendant's. The caller apologized but indicated that he would not turn himself in. Three days later, someone placed Michael's cell phone in Mays's mailbox. Mays noticed a truck driven by defendant on the night of the murder parked four houses away, and defendant's brother was in the driver's seat.
II. ANALYSIS
Through his appellate counsel, defendant challenges the sufficiency of the evidence supporting the premeditation and deliberation element of his murder conviction. In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, defendant challenges the evidence supporting his identification as the perpetrator.
We review de novo challenges to the sufficiency of the evidence, "viewing the evidence in the light most favorable to the prosecution and determining whether the trial court could have found the essential elements proved beyond a reasonable doubt." People v Ventura, 316 Mich App 671, 678; 894 NW2d 108 (2016). "When reviewing a challenge to the sufficiency of the evidence, all conflicts in the evidence must be resolved in favor of the prosecution, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime." People v Murphy, 321 Mich App 355, 358-359; 910 NW2d 374 (2017) (quotation marks and citation omitted). "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." Id. (quotation marks and citation omitted). We also may not interfere with the fact finder's assessment of witness credibility. People v Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004).
The prosecutor presented sufficient evidence to support that defendant killed Michael with premeditation and deliberation.
Premeditation and deliberation require sufficient time to allow the defendant to take a second look. The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing. Premeditation may be established through evidence of the following factors: (1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide. [People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995) (citations omitted).]
Here, there was evidence that defendant and Michael were partners in a drug-selling operation, although there was no indication of any prior hostility between the men. Defendant waited until he and Michael were alone to commit his crime. Powell heard Michael talking loudly just before she heard four gunshots. There was then a lull in the action before Powell heard three more gunshots. The fact finder could infer from this evidence that defendant acted menacingly toward Michael, leading him to yell. Powell heard running and stumbling in between the two rounds of gunfire. The sounds suggest either a struggle or that Michael attempted to flee. The time in between the rounds of gunfire gave defendant ample opportunity to reconsider his actions and he chose to finish the job by firing an additional three shots at Michael. Defendant's act of taking his and Michael's shared drug inventory for himself leads to an inference that he planned the murder for financial benefit. And immediately returning to the home with charcoal lighter fluid with the intent of covering up his crime suggests preplanning.
In his Standard 4 brief, defendant cites the possibility that these last three shots did not hit Michael and that the first four shots were the fatal blows. Defendant contends that this would prevent the period between gunshots from serving as a time to rethink his actions. However, there is sufficient evidence from which the trial court could conclude that defendant had time to consider his actions before the first round of shots. Moreover, there is no way to ascertain which four of defendant's seven shots hit Michael. --------
Defendant contends that as Powell heard only Michael speaking loudly before the shooting, it is likely that Michael was the aggressor. Defendant only shot Michael "in the heat of passion," negating the element of premeditation and deliberation, he asserts. But this is only one possible interpretation of the evidence and the court seemingly rejected it. We may not interfere with that assessment.
As noted, defendant also challenges the evidence supporting his identity as the perpetrator. "[I]t is well settled that identity is an element of every offense." People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). There was adequate circumstantial evidence from which the court could determine that defendant was the shooter. Powell and the unidentified woman had both left the living area of the home to go to bed, leaving defendant and Michael alone. Powell's bedroom was near the front door and she heard no one else enter. Immediately after the shooting, Powell found defendant alone with Michael's body. And Powell testified that defendant owned a gun to which he had easy access that evening.
Defendant further argues in his Standard 4 brief that the trial court's findings of fact were unreasonable and inconsistent with the evidence presented at trial. We review for clear error a court's findings following a bench trial. People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. at 473. We are not left with such conviction here. Consistent with Powell's testimony, the court found that defendant fired seven shots in two bursts and that four of the shots hit Michael. Consistent with the fire investigator's testimony, the court determined that defendant intentionally burned Michael's body in an attempt to destroy the evidence of the homicide. The court did not accept defendant's current theory that someone else committed the murder or that he acted without premeditation and deliberation, but its findings were supported by the evidence.
Defendant also argues in his Standard 4 brief that the trial court ignored inconsistencies between Powell's trial testimony and her statements to police. Specifically, Powell told a detective that she heard Michael say, "N**** what? You don't want it," heard four gunshots, felt someone pushing against her bedroom door, and then someone fired three gunshots through her bedroom door. This statement may be inconsistent with Powell's trial testimony. However, this goes to Powell's credibility, a matter specifically reserved for the trier of fact.
In his in pro per brief, defendant also raises a "free standing claim of actual innocence." As defendant's convictions were based upon sufficient evidence, defendant cannot establish any ground for relief in this regard.
We affirm.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Elizabeth L. Gleicher